Folwell v Mayer

Case [2020] QSC 162


SUPREME COURT OF QUEENSLAND

CITATION:

Folwell v Mayer [2020] QSC 162

PARTIES:

DONNA LEE FOLWELL

(Applicant)

v

JENNIFER MAYER TRADING AS DISCOVERY CHIROPRACTIC

(Respondent)

FILE NO/S:

BS No 13682 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

8 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2020

JUDGE:

Bowskill J

ORDERS:

An order will be made under ss 59(1) and 59(2)(b) of the Personal Injuries Proceedings Act 2002, giving the applicant leave to start a proceeding even though the period of limitation has ended, subject to hearing from the parties as to the precise form of order.

The Court directs that:

1.    The applicant file and serve submissions as to costs within seven days, addressing the matters in paragraph [51] of the judgment.

2.     The respondent file and serve submissions as to costs in reply (if required) within 14 days.

The issue of costs will be dealt with on the papers following receipt of the submissions, unless either party requests an oral hearing.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – where the applicant claims to have suffered injury as a result of chiropractic treatment in October 2015 – where the applicant issued a complying notice of claim within the limitation period but had not otherwise completed the pre-litigation procedures under the Personal Injuries Proceedings Act 2002 (Qld) before the limitation period expired – where the applicant applies for leave to commence proceedings even though the limitation period has ended

Personal Injuries Proceedings Act 2002 (Qld), s 59

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Cottle v Smith [2008] QCA 244

Haley & Anor v Roma Town Council [2005] QCA 3; [2005] 1 Qd R 478

Kash v SM & TJ Cedergren Builders [2003] QSC 426; [2004] 1 Qd R 643; [2003] QSC 426

Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 480; [2005] 1 Qd R 378

Paterson v Leigh & Anor [2008] QSC 277

Singh v Hill [2019] QCA 227

Ward v Wiltshire Australia Pty Ltd [2008] QCA 93; (2008) 51 MVR 1

Winters v Doyle [2006] 2 Qd R 285

COUNSEL:

R D Green for the applicant

P Hackett for the respondent

SOLICITORS:

CMC Lawyers for the applicant

Meridian Lawyers for the respondent

  1. The applicant wishes to commence proceedings against the respondent to recover damages for personal injuries she claims to have suffered as a result of chiropractic treatment, involving manipulation of her neck, on 4 October 2015. She gave the respondent notice of the claim under s 9 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) within the limitation period, but did not commence proceedings before the limitation period expired. The applicant applies, under s 59(2)(b) of the PIPA, for an order altering the limitation period and permitting her to commence proceedings within 60 days after the earlier of:

    (a)a compulsory conference held in accordance with s 36 of the PIPA…

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AGLC
Folwell v Mayer [2020] QSC 162
Case
[2020] QSC 162
Decision Date

CaseChat Overview and Summary

The applicant in Folwell v Mayer sought leave to commence proceedings for personal injuries sustained during chiropractic treatment in October 2015, despite the limitation period having expired. The applicant had issued a complying notice of claim within the limitation period but had not completed the required pre-litigation procedures under the Personal Injuries Proceedings Act 2002 (Qld) before the limitation period expired. The court was tasked with determining whether the applicant could be granted leave to commence proceedings outside the limitation period and whether this would deprive the respondent of their ability to plead a limitation defence.

The primary legal issue was whether section 59 of the PIPA could be construed to permit the limitation period to be extended without depriving the respondent of their defence of limitation. The court considered the evident intent of section 59, which is to allow for an extension of the limitation period in certain cases. It was noted that if a complying notice of claim is given before the limitation period ends, the claimant may start proceedings even if the limitation period has expired, provided certain conditions are met. The court highlighted that the effect of section 59 is to alter the period of limitation, allowing for the commencement of proceedings outside the limitation period and depriving the defendant of the limitation defence.

The court found that the applicant's submission that the order could be made without prejudice to the respondent's ability to plead a limitation defence was incorrect. The clear intent of section 59 is to permit an extension of the limitation period, and the order under section 59(2)(b) would allow the applicant to commence proceedings despite the limitation period having expired. The court emphasised that depriving the defendant of the complete defence of the statutory time bar is a significant matter, but the interests of justice and the possibility of a fair trial are overriding considerations. The court considered the applicant's efforts to comply with the Act and any relevant delay or prejudice to the respondent.

The court granted the applicant leave to start proceedings under section 59(1) and 59(2)(b) of the PIPA, subject to the parties providing further submissions on the form of the order. The court also directed the parties to file and serve submissions on costs, with the issue to be dealt with on the papers unless an oral hearing was requested.

Orders

Orders of the court

An order will be made under ss 59(1) and 59(2)(b) of the Personal Injuries Proceedings Act 2002, giving the applicant leave to start a proceeding even though the period of limitation has ended, subject to hearing from the parties as to the precise form of order.

The Court directs that:

1. The applicant file and serve submissions as to costs within seven days, addressing the matters in paragraph [51] of the judgment.

2. The respondent file and serve submissions as to costs in reply (if required) within 14 days.

The issue of costs will be dealt with on the papers following receipt of the submissions, unless either party requests an oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 59 of the PIPA provides as follows:“59 Alteration of period of limitation(1) If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.(2) However, the proceeding may be started after the end of the period of limitation only if it is started within —(a) 6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or(b) a longer period allowed by the court.(3) Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.(4) If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.” At the hearing of the application counsel for the applicant submitted it may be possible to construe s 59 in such a way that it does not extend the limitation period, and that the order sought could be made without prejudice to the respondent’s ability to plead a limitation defence.[1] However, it is quite clear that this is not correct as a matter of law. The effect of s 59 is accurately stated in the heading of the section: alteration of period of limitation. It is a provision which permits the limitation period to be extended.[2] As McMurdo J (as his Honour then was) said in Kash v SM & TJ Cedergren Builders & Ors [2004] 1 Qd R 643:“The evident intent of s 59 is to permit, in some cases, an extension of the period of limitation because the defendant has had the benefit of a complying notice of claim within the limitation period.” (at [15])and“… the effect of the order [under s 59] is to permit the proceeding to be commenced out of time and to deprive the defendant of the limitation period defence.” (at [20])[1]See [15] of the applicant’s submissions.[2]See, for example, Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426; [2004] 1 Qd R 643 at [14], [15], [20], [24]-[25] per McMurdo J (as his Honour then was); Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 480; [2005] 1 Qd R 378 at [12] per McMurdo P, at [29] per Williams JA, and at [82], [88]-[89] per Chesterman J (in relation to the equivalent provision, s 57 of the Motor Accident Insurance Act 1994 (Qld)); Haley v Roma Town Council [2005] QCA 3; [2005] 1 Qd R 478 at [27], [29] and [30] per McMurdo P, Jerrard JA and Mullins J (as her Honour then was) agreeing; also per Jerrard JA at [48]; Singh v Hill [2019] QCA 227 at [52] per Flanagan J, Sofronoff P and Gotterson JA agreeing (also in relation to s 57 of the Motor Accident Insurance Act). The decision of McMeekin J in Paterson v Leigh & Anor [2008] QSC 277, in relation to the equivalent s 57 of the Motor Accident Insurance Act 1994, contains a helpful summary of the relevant principles which apply to the exercise of the discretion on an application such as this: “(a) The discretion to be exercised in respect of an application pursuant to [s 59(2)(b) of the PIPA] is unfettered;(b)The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;(c) Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;(d) Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;(e) Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;(f) The length of any delay is important and possible prejudice to the defendant is relevant;(h)Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;(i)The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;(j) The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”[3][3]Paterson v Leigh & Anor [2008] QSC 277 at [8]; references omitted. Recently referred to with approval in Singh v Hill [2019] QCA 227 at [55] per Flanagan J, Sofronoff P and Gotterson JA agreeing.